Friday, July 17, 2020

Midyear Employment Law Update – 2020

While COVID-19 has been in the forefront of most legal issues for employers in 2020, a host of non-COVID legal developments have also taken place requiring California employers to take heed.  Below is a summary of some of these new laws:

Fair Employment and Housing Act Regulations

Effective July 1, 2020, the new Fair Employment and Housing Act (FEHA) regulations clarify a number of key employment practices:

·         Employers cannot request scheduling information from applicants to ascertain an applicant’s religious creed, disability or medical condition.  If an employer makes any scheduling inquiring during the pre-employment phase (i.e. application, interview), it must clearly communicate that the applicant does not need to disclose any scheduling restrictions based on legally protected grounds (i.e. religion, disability or medical condition).  An employer that does not comply with this practice will be in violation of FEHA unless it can prove its practice was job related and consistent with business necessity.   

·         To prevent age discrimination, employers cannot ask applicants when they graduated or their date of birth.  In addition, online applications cannot (1) require applicants to enter their age in order to access or complete an application; (2) use drop-down menus that contain age-based cut-off dates; or (3) utilize automated section criteria or algorithms that effectively screen out applicants age 40 and older.

·         Employers are now substantially limited in the language that can be used in recruiting and advertising – prohibiting anything that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over”, unless age is a bona fide occupational qualification for the position. 

·         The revised FEHA regulations create a presumption of age discrimination for practices that have an adverse impact on applicants and employees age 40 or over, even if the practice or policy looks neutral and does not specifically target older workers.

Workers’ Compensation

On January 1, 2020, AB 5, the independent contractor bill that codified the “ABC Test” outlined by the California Supreme Court’s 2018 Dynamex decision and extended it to the Labor and Unemployment Insurance Codes, went into effect.  However, one provision of that law was delayed until July 1, 2020.  Specifically, the ABC Test will apply for purposes of workers’ compensation beginning July 1, 2020.  This means, the Workers’ Compensation Appeals Board will now use Labor Code Section 2750.3 (the ABC Test or an exclusion) to determine whether someone is entitled to workers’ compensation benefits (as an employee) or not (as an independent contractor). 

Expanded Paid Family Leave Benefits

As a result of SB 83, beginning July 1, 2020, the maximum duration of Paid Family Leave (PFL) benefits an individual can receive from California’s State Disability Insurance program will go from six to eight weeks.  PFL provides partial wage replacement to employees who are absent from work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement of the child via foster care or adoption.

Minimum Wage Updates

On January 1, 2020, the California minimum wage increased to $13/hr for employers with 26 employees or more and $12/hr for employers with 25 employees or fewer.  However, on July 1, 2020, a number of localities increased their minimum wage requirements.  Below is a list of those localities:

  • Alameda: $15/hour.
  • Berkeley: $16.07/hour.
  • Emeryville: $16.84/hour;
  • Fremont: $15/hour for employers with 26 or more employees; $13.50/hour for employers with 25 or fewer employees.
  • Los Angeles City: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
  • Los Angeles County (unincorporated areas): $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
  • Malibu: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
  • Milpitas: $15.40/hour.
  • Novato: $15/hour for employers with 100 or more employees; $14/hour for employers with 26-99 employees; $13/hour for employers with 25 or fewer employees.
  • Pasadena: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
  • San Francisco: $16.07/hour.
  • San Leandro: $15/hour.
  • Santa Monica: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
  • (NEW) Santa Rosa: $15/hour for employers with 26 or more employees; $14/hour for employers with 25 or fewer employees.

U.S. Supreme Court Case Re: Title VII

On June 15, 2020, the U.S. Supreme Court issued a highly anticipated decision ruling that sexual orientation and gender identity are protected by Title VII of the Civil Rights Act’s sex discrimination protections. (Bostock v. Clayton County, Georgia, No. 17-1618, (U.S., Jun. 15, 2020).)  Accordingly, any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII. 

Background Report Disclosure

The Ninth Circuit Court of Appeals recently held that a background report disclosure to a job applicant, which is required by the Fair Credit Reporting Act, may be provided to the applicant at the same time as other hiring-related documents as long as it is a “standalone” document that consists only of the disclosure.  In other words, the disclosure cannot be buried inside other documents, such as a job application.

If you have any questions regarding the foregoing laws and how it impacts your business, please give me a call.

Donna Vasquez

D Vasquez Law, APC

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

Tuesday, July 7, 2020

Going Back to Work Tips During COVID-19


The Centers for Disease Controls and Prevention (CDC) recently released guidance to assist employers in making decisions about resuming work during the COVID-19 pandemic. Aside from following the recommendations issued by state and local health departments, the following list provides helpful tips and guidance from the CDC:

1. Questions To Consider Before Reopening
According to the CDC guidance, you should consider three questions when deciding whether to reopen:

  • Are you in a community no longer requiring significant mitigation?
  • Will reopening be in compliance with state and local orders?
  • Will you be ready to protect employees at higher risk for severe illness? (e.g. teleworking, tasks that minimize contact)?

It is recommended that you only consider reopening if you can answer “yes” to each of the three questions set forth above.

2. Do A Risk Assessment And Prepare A Plan
Once you decide your organization can reopen, you should conduct a risk assessment of your site and prepare a site-specific protection plan incorporating the State's and CDC’s recommended safety actions.

3. Establish Safeguards For The Ongoing Monitoring Of Employees
You should establish and implement safeguards for the ongoing monitoring of employees.

4. Prepare Your Physical Workspace
The final step before you reopen your business involves the proper preparation of your physical workspace for reentry by workers, customers, guests, and other visitors.

5. Be Attentive
Unfortunately, your work does not end just because you have opened your doors and welcomed your workers and others into your establishment. The CDC recommends that you maintain routine cleaning and disinfection procedures after reopening and to continue following recommended safety actions. 

More information about each of the foregoing topics can be found by clicking "Read More" below.

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

Monday, July 6, 2020

City of LA Supplemental Paid Sick Leave due to COVID-19

On March 27, 2020, the Los Angeles City Council passed an ordinance that Mayor EricGarcetti signed into law on April 7, 2020. This supplemental paid leave ordinance istargeting larger employers with employees working within the geographic boundaries ofthe City of Los Angeles. Below is a brief summary of some of the key issues addressed inthis new law.

Which employers are affected? An employer that has either 500 or more employeeswithin the City of Los Angeles or 2,000 or more employees within the United States. Forthose with 2,000 or more employees within the US, it applies to employers that employworkers in LA. Also, if a collective bargaining agreement is in place as of April 7, 2020,that does not address COVID-19 related sick leave, the employer must comply with theorder until the agreement is amended to expressly waive the terms.

When is this paid sick leave effective? April 7, 2020. It expires two weeks after theexpiration of the COVID-19 local emergency period. Are there exemptions? Yes, thereare six exemptions for which an employer above may qualify.

  1. Emergency and health services personnel. (Pleasenote, for purposes of this law,an employer of an employee who is a “health care worker” shall be exempt fromthis Order. These include individuals described in Cal. Gov. Code section 12945.2(c)(6) [i.e. physicians, surgeons, podiatrists, dentists, clinical psychologists,optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical socialworkers, physician assistants – but not medical assistants, registered nurses, orother employees within a healthcare facility] and those working at health facilitieslicensed under California Health and Safety Code section 1250 [i.e. facilitiesproviding 24 hour or more care, such as hospitals, skilled nursing facilities,hospices, etc.].)
  2. Critical parcel delivery employees.
  3. Employers who have a paid leave or paid time off policy that provides a minimumof 160 hours of paid leave annually.
  4. New businesses that started in the City or relocated to the City on or after September 4, 2019 through March 4, 2020.
  5. Government employees.
  6. Closed businesses and organizations—any business or organization that wasclosed or not operating for a period of 14 or more days due to a city official’semergency order because of the COVID-19 pandemic or provided at least 14 daysof leave shall be exempt from the Order.
Which employees may apply for the supplemental paid sick leave? An employeewho has been employed with the employer from Feb. 3, 2020 through March, 4, 2020,and performs any work within the geographic boundaries of LA.

What are the qualifying reasons for an employee being granted this paid sickleave? The employee must be unable to work or telework for one of the four qualifyingreasons listed below:

  1. The employee takes time off due to COVID-19 infection or because a public healthofficial or healthcare provider requires or recommends the employee isolate orself-quarantine to prevent the spread of COVID-19;
  2. The employee takes time off work because the employee is at least 65 years old orhas a health condition such as heart disease, asthma, lung disease, diabetes,kidney disease, or weakened immune system;
  3. The employee takes time off work because the employee needs to care for a familymember who is not sick but who public health officials or healthcare providers haverequired or recommended isolation or self-quarantine; or
  4. The employee takes time off work because the employee needs to provide care fora family member whose senior care provider or whose school or child care providercaring for a child under the age of 18 temporarily ceases operations in response toa public health or other public official’s recommendation. This provision is onlyapplicable to an employee who is unable to secure a reasonable alternativecaregiver.
What documentation can the employer request to grant leave for these qualifyingreasons? This leave must be granted upon oral or written request and no doctor’s note orother documentation is required.

Can an employer offset the amount of paid sick leave under this ordinance? Yes.The employer’s obligation to provide 80 hours of paid sick leave for this ordinance isreduced for every hour an employer allowed an employee to take paid leave in an amount equal to or greater than the requirements of this ordinance, not including previouslyaccrued hours, after March 4, 2020, for any reasons set forth above in response to anemployee’s inability to work due to COVID-19. This supplemental paid sick leave ordinanceis in addition to California/Los Angeles mandated paid sick leave.

Amount of Leave: If an employee is unable to work or telework, they are entitled to leaveas follows:

  1. An employee who works at least 40 hours per week or is classified as a full-timeemployee by the employer shall receive 80 hours of supplemental paid sick leave.Supplemental paid sick leave shall be calculated based on an employee’s averagetwo week pay over the period of February 3, 2020 through March 4, 2020.
  2. An employee who works less than 40 hours per week and is not classified as afull-time employee by the employer shall receive supplemental paid sick leave in anamount no greater than the employee’s average two week pay over the period ofFebruary 3, 2020 through March 4, 2020. In no event shall the supplemental paidsick leave amount paid to an employee exceed $511 per day and $5,110 in theaggregate.

Should you have any questions or need any assistance with this new legislation, please feel free to contact D Vasquez Law.

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.